Prop 8 Attorneys Take on Virginia's Same-Sex Marriage Amendment

The legal team who took on California's same-sex marriage ban will now try to overturn the constitutional amendment prohibiting gay marriage in Virginia.

The American Foundation for Equal Rights (AFER) and attorneys David Boies and Ted Olson, who were instrumental in overturning California's Proposition 8, said during a press conference Monday that they have joined a lawsuit filed in the U.S. District Court for the Eastern District of Virginia in July.

The suit was filed on behalf of Tim Bostic and Tony London, a gay couple that was denied a marriage license at the Norfolk Circuit Court. Joining them as plaintiffs in the case are Carol Schall and Mary Townley, who were married in California in 2008 but now want their marriage to be recognized by the Commonwealth of Virginia.

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"David and I are not done with the battle," said Olson during the press conference. "Even though we were successful in California, we don't feel, and we will not feel, that we've been successful until all Americans have the same right and the same privileges and the same respect that other Americans do."

Virginia's Marshall-Newman Amendment, which was ratified by voters in November 2006, defines marriage as "a union between one man and one woman." It also says the commonwealth "shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage," among other things.

Liberty Counsel, a Christian legal organization that has an office in Lynchburg, Va., plans to help defend any challenges to the amendment, according to the group's founder and chairman, Mathew Staver.

"We will seek to intervene on behalf of Liberty Counsel and other organizations that worked to pass the marriage amendment and seek to add an additional legal defense to whoever from the state defends this case," said Staver.

The current state attorney general, Ken Cuccinelli, will defend the amendment well, says Staver, though he is running for governor and it is unclear at this time who will take his place as attorney general.

When asked how the Virginia case might differ from the Prop 8 case in California, Staver said he hopes the judges ruling over the new case won't be so biased.

Now-retired Judge Vaughn Walker did not reveal he was in a long-standing same-sex relationship before he ruled Prop 8 unconstitutional, a decision which Staver says the judge stood to benefit from. Judge Stephen Reinhardt refused to recuse himself from Prop 8 proceedings even though his wife was the head of the Southern California office of the American Civil Liberties Union, an organization that filed court documents in support of same-sex marriage.

"You had a perfect storm combination in California, and hopefully we wouldn't see that in Virginia," said Staver.

Virginia is one of 37 states that currently prohibit same-sex marriage. A state judge in New Jersey ruled last week that the state must allow gay couples to marry, though Governor Chris Christie's office will appeal the decision.

The Freedom Federation, an alliance of some of the largest faith-based organizations in the U.S., previously explained in a statement why they are so adamantly in favor of protecting traditional marriage.

"Marriage as existing solely between one man and one woman was not an idea manufactured by religion or civil government. It precedes both," the document, which was co-drafted by Staver, says. "Though affirmed, fulfilled, and elevated by our faith, the truth that marriage can exist only between one man and one woman is not based on religion or revelation alone, but on the Natural Moral Law, written on the human heart and discernible through the exercise of reason."

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